Symposium: The First Amendment protects speech and religion, not discrimination in public spaces

Posted Tue, June 5th, 2018 1:13 pm by Sherrilyn Ifill

Sherrilyn Ifill is the president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc., which filed an amicus brief in support of the commission in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

It’s been nearly a quarter century since the passage of the Civil Rights Act of 1964 outlawed racial discrimination in public accommodations. Yet this year has been marked by an intense national conversation about dignity and equal treatment in public spaces. Just last week the Starbucks corporation closed down its 8,000 stores for a day to offer anti-bias training to its employees after an incident that went viral in which a store employee called police officers to remove two African-American men from the store. This week, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a baker in Colorado who refused to bake a wedding cake for a same-sex couple.

The struggle of African-Americans to be treated as full citizens in the public space was such a core aspect of the civil rights movement that the images of the movement that come most readily to mind are those of lunch counter sit-ins, the Montgomery bus boycott and the Freedom Rides – all powerful campaigns of civil disobedience focused on achieving equal treatment in the public space. The Civil Rights Act of 1964 transformed segregation in the public space, although it took many more years and even a Supreme Court case – Newman v. Piggie Park — to ensure that African-Americans were guaranteed access to public facilities on an equal basis. As the Starbucks incident in Philadelphia, and subsequent incidents at Waffle Houses in the South, at parks, and at other retail establishments demonstrate, racial discrimination in public accommodations has proven to be stubbornly persistent.

Against this backdrop, it was fitting that this week’s Masterpiece Cakeshop decision reaffirmed the principles set forth in Piggie Park. Of course, Masterpiece Cakeshop is distinct from Piggie Park in important ways. First, Piggie Park was concerned with racial discrimination in the public space. Race has a unique history in our country, and racial discrimination in public accommodations was an essential aspect of the racial caste system that was sanctioned by law until the civil rights movement and that in many respects continues today. Of course, although racial discrimination is unique, no one should be denied full citizenship in public spaces because of who they are. And, when the Supreme Court has considered and rejected religious exemptions that arose in the context of racial discrimination, it has rightly not limited those precedents to the context in which they arose. Also, Masterpiece Cakeshop involved a challenge to the application of a state human rights statute and Piggie Park involved a challenge to the federal Civil Rights Act of 1964.

But the cases are similar in one critically important aspect: Both involved the invocation of religious belief as a justification for discriminatory conduct. The NAACP Legal Defense and Educational Fund Inc. filed an amicus brief on this subject, precisely because so few people seemed to recall that segregationists often articulated their “sincere religious beliefs” as a justification for resisting integration. The owner of the Piggie Park restaurant in South Carolina was no exception. Maurice Bessinger refused to serve three African-American customers because he believed that serving black customers or contributing to racial intermixing in any way “contravene[d] the will of God.” Bessinger argued that his deeply held religious beliefs allowed him to circumvent Title II of the Civil Rights Act, which bars discrimination in public accommodations. When Piggie Park reached the Supreme Court, the court unanimously held that Bessinger’s conduct violated Title II because, as the district court had explained, “free exercise of one’s beliefs … as distinguished from the absolute right to a belief, is subject to regulation when religious acts require accommodation to society… Undoubtedly, Bessinger has a constitutional right to espouse religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”

In the most powerful part of the majority opinion in Masterpiece Cakeshop, Justice Anthony Kennedy reaffirmed this principle. Writing for the court, Kennedy explained:

The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

This portion of the Masterpiece Cakeshop opinion citing and affirming the holding in Piggie Park that discrimination in public accommodations is not protected by the First Amendment was joined by six justices, and was also supported by the two dissenting justices, Justices Ruth Bader Ginsburg and Sonia Sotomayor. It is important to recognize that eight Supreme Court justices reaffirmed this principle and did so in the context of recognizing that members of the LGBTQ community are covered by this general admonition.

The Supreme Court in Masterpiece Cakeshop nonetheless reversed the rulings of the Colorado Civil Rights Commission and the Colorado Court of Appeals that the owner of cakeshop, Jack Phillips, violated the state’s antidiscrimination laws when he refused to provide a wedding cake for a same-sex couple, on the ground that the commission demonstrated hostility to Phillips’ claim. The court’s decision rested on the universal principle that constitutional claims must be heard in every instance before a neutral tribunal. Specifically, pointing to statements by commissioners that it found indicated lack of respect for Phillips’ religious objections to same-sex marriage, the court stated that “[w]hen the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.” Because the court did not rule that the baker’s refusal to provide services based on his religious beliefs is protected by the First Amendment, it left the door open for the commission to reach the same result on remand so long as it acts with religious neutrality.

As last month’s Starbucks’ incident demonstrates, people of color continue to experience persistent and widespread discrimination in places of public accommodation and are continually denied the benefits and privileges of being full citizens. The critical protections of antidiscrimination laws, especially those that are intended to preserve and advance the full and equal enjoyment of places of public accommodation, must be preserved and efforts to carve out any exceptions foreclosed.

The Supreme Court’s reaffirmation of this principle in the Masterpiece Cakeshop opinion was heartening. It was also encouraging to read the court’s clearly stated recognition that “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.” In this respect, the court’s Masterpiece Cakeshop opinion rightly upheld the precedent set forth in Piggie Park and further bolstered the principle that the First Amendment does not give business owners a right to discriminate in the public sphere.

In the end, the fundamental question at issue in the case – whether the kind of service provided by Phillips can ever be refused to same-sex couples based on the business owner’s religious or philosophical objections — remains unanswered by the court. That, in and of itself, is disappointing. In dissent, Ginsburg made a powerful argument that the commission did not act with impermissible religious bias, and that therefore the court should have squarely held that Phillips’ rights to free speech and the free exercise of religion did not allow him to violate Colorado’s anti-discrimination law. However, the court also stressed that Phillips’ refusal to serve Charlie Craig and David Mullins occurred before the Supreme Court recognized the constitutional right of same-sex couples to marry in United States v. Windsor and Obergefell v. Hodges. Above all, Masterpiece Cakeshop evinces that the court recognizes that future cases raising such issues will require it to calibrate a careful balance between antidiscrimination principles and religious liberty.

Recent Decisions

United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.

Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.

Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.

Current Relists

Conference of December 7, 2018

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.